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IN RE SCHWARTZ | MASS. BK Court Re-Opens Case “The fact that it had possession of the mortgage instrument did not render Deutsche the mortgagee and thus it lacked the power to sell the property”

IN RE SCHWARTZ | MASS. BK Court Re-Opens Case “The fact that it had possession of the mortgage instrument did not render Deutsche the mortgagee and thus it lacked the power to sell the property”


In re:





After the plaintiff, Sima Schwartz, presented her case in chief during the first day of the trial in
this adversary proceeding, upon oral motion of the defendants, HomEq Servicing and Deutsche Bank
National Trust Company, as Trustee, I granted judgment on partial findings in favor of the defendants
on all counts of the complaint, pursuant to Fed. R. Civ. P. 52(c), made applicable to this proceeding by
Fed. R. Bankr. P. 7052. Ms. Schwartz then moved for a new trial as a result of which judgment was
vacated on count I of the complaint only. Schwartz v. HomEq Servicing (In re Schwartz), 2011 WL
1331963 (Bankr. D. Mass. Apr. 7, 2011). In count I, Ms. Schwartz alleges that the May 24, 2006
foreclosure sale of her home by Deutsche was invalid because Deutsche did not own the mortgage on
the property at the relevant time.1 I reopened the trial so that the defendants could present their case
with respect to that count, which they did on June 1, 2011. Based on the evidence and legal
submissions presented by the parties, my findings of fact, conclusions of law and order are set forth

Jurisdiction and Standing

Core jurisdiction over this case is conferred upon the bankruptcy court by 28 U.S.C.
§ 157(b)(2)(G) and (O). See Atighi v. DLJ Mortg. Capital, Inc. (In re Atighi), 2011 WL 3303454, at
*3 (B.A.P. 9th Cir. Jan. 28, 2011). Ms. Schwartz’s standing to seek relief is based on her property
interest in light of the alleged wrongful foreclosure. Brae Asset Fund, L.P. v. Kelly, 223 B.R. 50, 56
(D. Mass. 1998).

Legal Framework

Mass. Gen. Laws ch. 244, § 14 establishes the procedure for a mortgagee to foreclose a
mortgage by exercise of the statutory power of sale. The statute provides that prior to a foreclosure
sale a notice of the sale must appear weekly for three consecutive weeks in a newspaper either
published in or generally circulated in the city or town where the property is located. The
Massachusetts Supreme Judicial Court has recently clarified that a foreclosing mortgagee must hold
the mortgage as of the date that the first notice of sale is published. U.S. Bank Nat. Ass’n v. Ibanez,

The Defendants’ Case

It is undisputed that Deutsche was not the original mortgagee of the mortgage on Ms.
Schwartz’s home, so it must prove that the mortgage was assigned to it prior to the date when the first
foreclosure notice was published. As discussed in the memorandum and order on the plaintiff’s
motion for a new trial, while the evidence established that an assignment of the mortgage from
Mortgage Electronic Registration Systems, Inc. (“MERS”) to Deutsche was executed on May 23,
2006, the day before the foreclosure sale, this assignment, being well after the notice of foreclosure
sale was first published, did not confer on Deutsche the power to foreclose on May 24. The Supreme
Judicial Court in Ibanez, however, offered an alternative method for a party to acquire sufficient rights
in a mortgage to qualify to foreclose:

Where a pool of mortgages is assigned to a securitized trust, the executed agreement
that assigns the pool of mortgages, with a schedule of the pooled mortgage loans that
clearly and specifically identifies the mortgage at issue as among those assigned, may
suffice to establish the trustee as the mortgage holder.

Ibanez, 458 Mass. at 651.

With this in mind, the defendants introduced into evidence at trial all of the agreements
tracking the transfer of Ms. Schwartz’s mortgage loan from its originator, First NLC Financial
Services, LLC (“First NLC”), to Deutsche, complete with the necessary schedules of the pooled
mortgage loans specifically identifying her mortgage as being among those transferred. The
defendants argue that these agreements, together with other evidence introduced by them, establish that
Deutsche was the holder of the mortgage well in advance of the first publication of the notice of sale.
At trial, Ronaldo Reyes, a Deutsche vice president, testified that he had management
responsibility over the administration of the Morgan Stanley Home Equity Loan Trust 2005-4 (the
“Trust”) and that Deutsche had always been the trustee of the Trust. He testified that in his capacity
as vice president he had access to the books and records of the Trust and was qualified to authenticate
and testify about the documents admitted into evidence by the defendants. During the course of his
testimony, Mr. Reyes authenticated executed copies of each of the agreements discussed below, and
demonstrated that Ms. Schwartz’s mortgage loan was included on the mortgage loan schedules
attached as exhibits to several of the agreements. Mr. Reyes testified that each was used in the
ordinary course of Deutsche’s business as trustee of the Trust.

The following documents were admitted into evidence: (i) the mortgage on Ms. Schwartz’s
home; (ii) the original promissory note executed by Ms. Schwartz, which Mr. Reyes noted was
endorsed in blank by First NLC; (iii) the Amended and Restated Mortgage Loan Purchase Agreement
(the “Loan Purchase Agreement”) dated as of September 1, 2005 by and between Morgan Stanley
Mortgage Capital, Inc. (“MS Mortgage Capital”) and First NLC; (iv) the Assignment and Conveyance
Agreement dated September 29, 2005, by and between First NLC and MS Mortgage Capital; (v) the
Bill of Sale dated November 29, 2005 by and between MS Mortgage Capital and Morgan Stanley ABS
Capital I Inc. (“MS ABS Capital”); and (vi) the Pooling and Servicing Agreement (the “PSA”) dated
as of November 1, 2005 by and among MS ABS Capital, HomEq Servicing Corporation, JPMorgan
Chase Bank, National Association, First NLC, LaSalle Bank National Association and Deutsche. Mr.

Findings of Fact2

1. On July 22, 2005, Ms. Schwartz refinanced the mortgage loan on her property at 23 Sigel Street,
Worcester, Massachusetts, executing a promissory note in the amount of $272,000 payable to First
NLC and a mortgage securing her obligation under the note naming MERS, solely as nominee for
First NLC, its successors and assigns, as mortgagee.

2. The mortgage, which was duly recorded at the Worcester District Registry of Deeds, includes the
statutory power of sale under Mass. Gen. Laws. ch 183, § 21 which is invoked by reference to the
statute and which permits a mortgagee to foreclose a mortgage by public auction sale of the
property upon the mortgagor’s default in performance or breach of any conditions thereof.

3. On May 3, May 10 and May 17, 2006, a notice of foreclosure sale was published in the Worcester
Telegram and Gazette stating that “Deutsche Bank National Trust Company, as Trustee,” the
“present holder” of the mortgage, intended to foreclose the mortgage by public sale of Ms.
Schwartz’s property on May 24, 2006.

4. On May 23, 2006, Liquenda Allotey, described as a vice president of MERS, executed an
Assignment of Mortgage for the purpose of assigning the mortgage from MERS to “Deutsche Bank
National Trust Company, as Trustee.”

5. Deutsche, in its capacity as trustee of the Trust,3 conducted the foreclosure sale as scheduled on
May 24, 2006, bid in its mortgage debt and purchased the property.

6. In its answer, Deutsche admitted that a foreclosure deed conveying the property to itself was
recorded on October 13, 2006. There has been no evidence presented of any subsequent
conveyance of the property and hence I find that Deutsche remains the record owner of the Sigel
Street property.

7. As she testified on the first day of trial, Ms. Schwartz continues to reside in the Sigel Street

8. The original promissory note executed by Ms. Schwartz was endorsed in blank by an officer of
First NLC.

9. The original mortgagee as identified in the mortgage on Ms. Schwartz’s home was MERS, as
nominee for First NLC, its successors and assigns.

10. In accordance with Section 2 of the Loan Purchase Agreement, First NLC agreed to sell “Mortgage
Loans” to MS Mortgage Capital.

11. The Loan Purchase Agreement defines a “Mortgage Loan” as
An individual Mortgage Loan which is the subject of this Agreement, each Mortgage
Loan originally sold and subject to this Agreement being identified on the applicable
Mortgage Loan Schedule, which Mortgage Loan includes without limitation the
Mortgage File, the Monthly Payments, Principal Prepayments, Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds, Servicing Rights and all other rights,
benefits, proceeds and obligations arising from or in connection with such Mortgage
Loan, excluding replaced or repurchased mortgage loans.

12. On September 29, 2005, by way of the Assignment and Conveyance Agreement, First NLC sold,
transferred, assigned, set over and conveyed to MS Mortgage Capital “all right, title and interest of,
in and to the Mortgage Loans listed on the Mortgage Loan Schedule attached hereto as Exhibit A.”

13. Ms. Schwartz’s mortgage loan was listed on the exhibit attached to the Assignment and Conveyance Agreement.

14. First NLC, therefore, transferred all of its right, title and interest in Ms. Schwartz’s mortgage loan
to MS Mortgage Capital on November 29, 2005.

15. By the Bill of Sale dated November 29, 2005, MS Mortgage Capital, as the “Seller,” transferred to
MS ABS Capital “all the Seller’s right, title and interest in and to the Mortgage Loans described on
Exhibit A attached hereto.”

16. Ms. Schwartz’s mortgage loan was listed on Exhibit A to the Bill of Sale.

17. MS Mortgage Capital, therefore, transferred its entire interest in Ms. Schwartz’s mortgage loan to
MS ABS Capital on November 29, 2005.

18. Section 2.01 of the PSA, which was dated November 1, 2005, provides that the MS ABS Capital,
as “Depositor,”

concurrently with the execution and delivery hereof, hereby sells, transfers, assigns, sets
over and otherwise conveys to [Deutsche] for the benefit of the Certificateholders,
without recourse, all the right, title and interest of the Depositor in and to the Trust
Fund, and the Trustee, on behalf of the Trust, hereby accepts the Trust Fund.

19. The “Trust Fund” includes all of the mortgage loans listed on an attached mortgage loan schedule.

20. Ms. Schwartz’s mortgage loan was listed on the mortgage loan schedule attached to the PSA.

21. While the PSA provides that the mortgage loans were transferred from MS ABS Capital to
Deutsche, “concurrently with the execution and delivery hereof” on November 1, 2005, the Bill of
Sale provides that MS ABS Capital did not acquire the mortgage loans until November 29, 2005.
The November 2009 PSA indicates, however, that the transaction in which MS ABS Capital would
transfer the loans to Deutsch, as trustee of the Trust, would not be consummated until November
29, 2005, which is defined as the “Closing Date.” Therefore, MS ABS Capital transferred Ms.
Schwartz’s mortgage loan to Deutsche, as trustee of the Trust, on the Closing Date of November
29, 2005, which is the same date as the Bill of Sale by which MS ABS Capital acquired the loan
from MS Mortgage Capital.

22. Section 2.01(b) of the PSA provides that if

any Mortgage has been recorded in the name of Mortgage Electronic Registration
System, Inc. (“MERS”) or its designee, no Assignment of Mortgage in favor of the
Trustee will be required to be prepared or delivered and instead, the applicable Servicer
shall take all reasonable actions as are necessary at the expense of the applicable
Originator to the extent permitted under the related Purchase Agreement and otherwise
at the expense of the Depositor to cause the Trust to be shown as the owner of the
related Mortgage Loan on the records of MERS for the purpose of the system of
recording transfers of beneficial ownership of mortgages maintained by MERS.

23. Thus MS ABS Capital did not assign to Deutsche the mortgage on Ms. Schwartz’s home in
connection with the transaction through which it transferred Ms. Schwartz’s mortgage loan
pursuant to the PSA.

24. In the chain of transactions by which Ms. Schwartz’s mortgage loan was sold, initially by First
NLC to MS Mortgage Capital, next by MS Mortgage Capital to MS ABS Capital and finally by
MS ABS Capital to Deutsche, the seller sold all of its right, title and interest in the mortgage loans
being transferred. However, as the mortgage itself was originally in the name of MERS as
mortgagee, and not First NLC, First NLC never held legal title to the mortgage and could not have
transferred such title to MS Mortgage Capital. Consequently, neither MS ABS Capital nor
Deutsche, as successors to First NLC and MS Mortgage Capital, obtained legal title to the
mortgage. This is consistent with § 2.01 of the PSA quoted above.

25. As of November 29, 2005, the Closing Date defined in the PSA, MERS continued to hold legal
title to the mortgage on Ms. Schwartz’s home as nominee for First NLC, its successors and assigns.

26. MERS continued to hold legal tile to the mortgage until May 23, 2006, when it assigned the
mortgage to Deutsche.

27. The custodial log establishes that Deutsche received Ms. Schwartz’s mortgage loan documents,
including the promissory note and mortgage instrument, on September 15, 2005 (presumably in
anticipation of the November loan sale), and retained custody of these documents until March 27,
2006, when they were sent to HomEq. The custodial log indicates that the documents were sent
to HomEq for servicing and lists the reason for the transfer as “foreclosure.” According to the
custodial log, the loan documents were returned to Deutsche on May 24, 2006, the day of the
foreclosure sale.
Conclusions of Law

In In re Marron, 2011 WL 2600543, at *5 (Bankr. D. Mass. June 29, 2011), I held that where a
loan was secured by a mortgage in the name of MERS, even when the loan itself changed hands
several times, MERS remained the mortgagee in its capacity as nominee for the original lender, its
successors and assigns.4 As MERS was the mortgagee, it had the authority to assign the mortgage to
the foreclosing entity. In this case too, while Ms. Schwartz’s loan passed from hand to hand, MERS
remained the mortgagee throughout. While MERS held only bare legal title to the mortgage on
behalf of Deutsche, the successor to First NLC, until it assigned the mortgage to Deutsche on May 23,
2006, only MERS had the authority to foreclose.

Having determined that MERS, and not Deutsche, held legal title to the mortgage on Ms.
Schwartz’s home mortgage as of May 3, 2006, when the notice of the foreclosure sale of her home was
first published, it follows that Deutsche did not have the right to exercise the statutory power of sale
and to foreclose the mortgage. See, e.g., Novastar Mortgage, Inc. v. Safran, 79 Mass. App. Ct. 1124,
948 N.E.2d 917 (2011) (finding, in a post-foreclosure eviction proceeding, that the foreclosing entity
had the burden to prove its title to the property by establishing that the mortgage had been assigned to
it by MERS “at the critical stages of the foreclosure process.”). By publishing notice of the
foreclosure sale when it was not the mortgagee, Deutsche failed to comply with Mass. Gen. Laws ch.
244, § 14, and thus its foreclosure sale is void. Ibanez, 438 Mass. at 646-47.5 A declaratory
judgment to that effect shall enter on count I of the complaint.


At Worcester, Massachusetts this 22nd day of August, 2011.

By the Court,
Melvin S. Hoffman
U.S. Bankruptcy Judge


1 The complaint is unclear as to the relief Ms. Schwartz seeks as a result of the allegedly invalid
foreclosure. In addition to the allegation that the defendants did not own the mortgage, Ms. Schwartz
alleges that she was damaged by the foreclosure sale, which “was conducted fraudulently, in bad faith”
and to her detriment. I previously found that Ms. Schwartz failed to produce any evidence of the
defendants’ intent to defraud her. In addition, Ms. Schwartz failed to establish the extent of her
damages or that the foreclosure sale was conducted in bad faith. Though Ms. Schwartz does not
expressly request a declaratory judgment as to the validity of the foreclosure, based on the allegation of
invalidity in the complaint, and the parties’ arguments in the course of trial, I will consider count I of
the complaint to be a request for a declaratory judgment that the foreclosure sale was invalid.

2 Any finding of fact which should more properly be considered a conclusion of law, and vice versa,
shall be deemed as such.

3 The documents pertaining to the foreclosure sale identify Deutsche as “Deutsche Bank National
Trust Company, as Trustee” without identifying the trust.

4 The sophisticated financial minds who wrought the MERS regime sought to simplify the process of
repeatedly transferring mortgage loans by obviating the need and expense of recording mortgage
assignments with each transfer. No doubt they failed to consider the possibility of a collapse of the
residential real estate market, the ensuing flood of foreclosures and the intervention of state and federal
courts. Professor Alex Tabarrok of George Mason University has observed “[t]he law of unintended
consequences is when a simple system tries to regulate a complex system.” Alex Tabarrok, The Law
of Unintended Consequences, Marginal Revolution (Jan. 24, 2008, 7:47 am),

5 Deutsche presented sufficient evidence to prove that either it or HomEq, its agent, had possession of
both the Schwartz mortgage and promissory note as of May 3, 2011. The note was endorsed in blank,
which gave Deutsche the right to enforce the note. The fact that Deutsche had possession of the
mortgage, however, is irrelevant to its status as mortgagee. While a promissory note endorsed in
blank may be enforced by the party in possession of the note, this is not the case with a mortgage.
“Like a sale of land itself, the assignment of a mortgage is a conveyance of an interest in land that
requires a writing signed by the grantor.” Ibanez, 458 Mass at 649. Deutsche had not received a
written assignment of the mortgage from MERS prior to May 3, 2011. The fact that it had possession
of the mortgage instrument did not render Deutsche the mortgagee and thus it lacked the power to sell
the property.

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MA BK Court Denies DEUTSCHE BANK, HOMEQ MTD Permits Debtor To Prosecute IN RE SCHWARTZ

MA BK Court Denies DEUTSCHE BANK, HOMEQ MTD Permits Debtor To Prosecute IN RE SCHWARTZ

In re: SIMA SCHWARTZ, Chapter 7, Debtor.

Case No. 06-42476-MSH, Adv. Pro. No. 07-4098.

United States Bankruptcy Court, D. Massachusetts, Central Division.

March 14, 2011.


MELVIN S. HOFFMAN, Bankruptcy Judge

Before me is the motion of the defendants to dismiss six of the seven counts of the adversary proceeding on the grounds that the plaintiff, who is a Chapter 7 debtor, lacks standing to prosecute the six counts at issue because these claims underlying them are property of the debtor’s estate and may be prosecuted only by the Chapter 7 trustee.[1] The adversary proceeding, which was commenced on July 7, 2007, is scheduled to be tried on March 16, 2011. While the deadline for filing dispositive motions has come and gone, the defendants justify their last minute motion alleging that they only recently became aware of the debtor’s lack of standing. This justification does not withstand scrutiny.

The defendants cite to the debtor’s schedule B of her schedules of assets and liabilities, both as originally filed on November 28, 2006 and as subsequently amended on January 26, 2007, as evidence that she failed to disclose the claims against them asserted in this adversary proceeding. Additionally they cite to her statement of intention in which she listed as property she intended to redeem a three family home in Worcester, Massachusetts upon which Deutsche Bank is listed as the secured creditor.[2] These matters entirely undercut the defendants’ justification for not raising the debtor’s standing sooner. The schedules and statement of intention clearly evidence that the defendants knew or should have known of the debtor’s failure to list the asserted claims as property from the moment this adversary proceeding was initiated. In fact, by the time the debtor filed her amended schedule B, HomEq as servicing agent for Deutsche Bank had already filed a motion for relief from stay in order to evict the debtor from the Worcester property. Its counsel received notice of the amended schedule B by the Court’s electronic filing system. Thus the motion to dismiss is untimely.

The defendants correctly observe that timeliness may not matter because standing may be raised at any time in order to ensure that the case or controversy requirement of Article III of the United States Constitution is satisfied. Sentinel Trust Co. v. Newcare Health Corp. (In re Newcare Health Corp.), 244 B.R. 167, 170 (1st Cir B.A.P. 2000) citing U.S. v. AVX Corp., 962 F.2d 108, 116 n. 7 (1st Cir. 1992).[3] And, as the defendants argue, generally a Chapter 7 debtor may not prosecute claims belonging to the estate. Vreugdenhil v. Hoekstra (In re Vreugdenhill), 773 F.2d 213, 215 (8th Cir.1985);[4] Robert v. Household finance Corp. II (In re Robert), 432 B.R. 464 (Bankr. D. Mass. 2010). Thus I turn to the merits of the motion.

In the defendants’ view, the issue is straight-forward. The debtor did not list the claims on schedule B or amended schedule B and the Chapter 7 trustee has taken no steps to abandon these claims and thus they remain property of the estate.

The debtor filed her bankruptcy petition pro se. She was pro se at the time she filed her schedules of assets and liabilities, her statement of intention, her statement of financial affairs, and her amended schedules. Although she did not list any claims against the defendants as personal property, she listed HomEq on schedule D as a secured creditor for the two mortgages held on the Worcester property and listed HomEq again on schedule F as an unsecured creditor. On schedule C she claimed an exemption in the amount of either $340,000.00 or $390,000.00 in a “3 family house in Worcester, MA.”[5] In response to question 4(b) of the statement of financial affairs the debtor identified the eviction action that Deutsche Bank had commenced against her and wrote “Deutsche Bank has purchased my house and evicting me from my apartment.” [sic] At the time the statement of financial affairs was filed, the debtor resided in the Worcester property. She also disclosed the foreclosure in response to question 5 of the statement of financial affairs. Therefore the Chapter 7 trustee and parties in interest knew that the debtor was claiming an exemption in property which had been foreclosed prepetition. No objection to the exemption was filed. I find that the debtor’s claimed exemption in the Worcester property constitutes an exemption in her claims in this adversary proceeding to recover that property. Bottcher v. Emigrant Mortgage Co. (In re Bottcher), 441 B.R. 1, 3-4 (Bankr. D. Mass. 2011).

Further I find that the debtor’s failure to disclose with more specificity her claims against the defendants was inadvertent. “[T]here are two circumstances under which a debtor’s failure to disclose a cause of action in a bankruptcy proceeding might be deemed inadvertent. One is where the debtor lacks knowledge of the factual basis of the undisclosed claims, and the other is where the debtor has no motive for concealment.” Ullom v. Robbins (In re Robbins), 398 B.R. 442, 446 (Bankr. W.D.Ky. 2008). The debtor lacks the expertise or experience that would equip her to know how to articulate her claims against the defendants for damages. Moreover, she was not trying to hide the property she is seeking to recover. The schedules of assets and liabilities and statement of financial affairs are replete with references to the foreclosure. Furthermore, she exempted the Worcester property so anyone reading the schedules of assets and liabilities, the statement of intention and the statement of financial affairs knew or should have known that the Worcester property had been foreclosed upon but that the debtor thought she could nevertheless continue to own and redeem that property.

Moreover, the Chapter 7 trustee conducted the debtor’s meeting of creditors under 11 U.S.C. § 341[6] and on April 10, 2007 filed a report that there were no assets available for distribution. On July 7, 2007, the debtor, now, represented by counsel, filed the instant adversary proceeding. The Chapter 7 trustee received notice of the filing through the Court’s electronic filing system. To date, the Chapter 7 trustee has taken no action with respect to the adversary proceeding and, although on March 2, 2011 the defendants called the Chapter 7 trustee to bring the issue of standing to her attention, she has taken no position on this matter. See Motion to Dismiss.

Finally, courts have permitted creditor committees, individual creditors, or even debtors to pursue claims belonging to bankruptcy estates. Official Committee of Unsecured Creditors v. Marathon Financial Insurance Co. (In re Automotive Professionals, Inc.), 389 B.R. 630, 634 (Bankr. N.D. Ill. 2008) (collecting cases).

As the Chapter 7 trustee has shown no inclination to prosecute these claims, I will permit the debtor to prosecute them, either in her own name or as a representative of the estate, and defer determining whether the estate has an interest in any monetary award if the debtor should prevail on those counts for which monetary damages are appropriate.

The motion to dismiss is therefore denied.

[1] The complaint requests damages for an allegedly wrongful prepetition foreclosure and a declaration that the defendants’ mortgage is void. Although not expressly using the word “recission,” it also appears to request rescission of the foreclosure sale. The defendants are moving to dismiss counts I (wrongful foreclosure), II (fraud, deceit and misrepresentation), IV (violation of Mass. Gen. Laws ch. 93A), V (unfair servicing practices), VI (intentional infliction of emotional distress), and VII( violation of Fair Debt Collection Practices Act). The defendants are not challenging the debtor’s standing to prosecute count III, titled “void lien” by which the debtor seeks a declaration that the defendants’ alleged mortgage lien is void.

[2] I note that the defendants argue that the debtor stated her intention to redeem the property “even though no reaffirmation agreement was ever filed with the Court.” Motion to Dismiss at ¶ 10. Redemption does not require the execution and filing of a reaffirmation agreement.

[3] The inquiry into whether a party has standing has two levels of inquiry: first, whether the Constitutional requirements are satisfied and second, whether a party should be denied standing based on what are known as prudential limitations.

These prudential limitations are self-imposed rules of judicial restraint . . . principally concern whether the litigant (1) asserts the rights and interests of a third party and not his or her own, (2) presents a claim arguably falling outside the zone of interests protected by the specific law invoked, or (3) advances abstract questions of wide public significance essentially amounting to generalized grievances more appropriately addressed to the representative branches.

Newcare Health Corp., 244 B.R. at 170.

[4] The Vreugdenhil court noted that courts have used a variety of reasons for this conclusion.

Authorities have in general agreed (although on varying rationales) that a debtor may not prosecute on his own a cause of action belonging to the estate unless that cause of action has been abandoned by the trustee. Baker v. Data Dynamics, Inc., 561 F. Supp. 1161, 1165 (W.D.N.C.1983) (debtors lack capacity to maintain suit); In re Homer, 45 B.R. 15, 25 (Bankr.W.D.Mo.1984) (debtor has no standing); Steyr Daimler Puch of America Corp. v. Pappas, 35 B.R. 1001, 1004 (E.D.Va.1983) (trustee must be joined if feasible; court reserves question of whether trustee is an indispensable party); In re Leisure Dynamics, Inc., 33 B.R. 173 (Bankr.D.Minn.1983) (debtor lacks standing, and in absence of trustee, issues are not ripe or concrete); In re Myers, 17 B.R. 410, 411 (Bankr.E.D.Calif.1982) (debtor has no real interest in property of the estate); In re Raymond Construction Co., 6 B.R. 793, 797 (Bankr.M.D.Fla.1980) (trustee is the real party in interest). Cf. Management Investors v. United Mine Workers, 610 F.2d 384, 390-93 (6th Cir.1979); Burkett v. Shell Oil Co., 448 F.2d 59 (5th Cir.1971); Dallas Cabana, Inc. v. Hyatt Corp., 441 F.2d 865, 867 (5th Cir.1971); Moore v. Slonim, 426 F. Supp. 524 (D. Conn.), aff’d, 562 F.2d 38 (2d Cir.1977) (cases construing Bankruptcy Act). But see Smith v. State Farm Fire and Casualty Co., 633 F.2d 401, 404-06 (5th Cir.1980) (trustee not an indispensable party where record showed he was willing to rely on efforts made by debtors to prosecute case, and where objection was not made on this ground until conclusion of expensive and lengthy trial).

Id. at 215.

[5] The schedules are handwritten and the amount of the exemption is difficult to discern. It is either $340,000 or $390,000. The amount is not relevant to my decision.

[6] The § 341 meeting was scheduled for December 11, 2006 but there is no indication on the docket if the meeting was held that day.

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